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27:0452(64)AR - Army Air Defense Center, Fort Bliss, TX and NAGE Local R14-89 -- 1987 FLRAdec AR

[ v27 p452 ]
The decision of the Authority follows:

 27 FLRA No. 64
 LOCAL R14-89
                                            Case No. 0-AR-1305
                         I.  Statement of the Case
    This matter is before the Authority on exceptions to the award of
 Arbitrator Howard G. D'Spain filed by the Union under section 7122(a) of
 the Federal Service Labor-Management Relations Statute (the Statute) and
 part 2425 of the Authority's Rules and Regulations.
                              II.  Background
    The grievance in this case concerned the Union's claim that the
 Activity implemented a Government-wide regulation in violation of an
 article of the parties' agreement.  The parties' agreement was
 negotiated in 1980 with a duration of 2 years.  Article VII, Section 6
 of the agreement provided for 2 weeks' written notice of changes in
 tours of duty.
    According to the Union, in 1982 the parties attempted to renegotiate
 the agreement.  Subsequently, after contract negotiations were underway,
 a petition was filed by the National Federation of Federal Employees
 (NFFE) seeking an election to replace the Union as exclusive
 representative for the Activity's employees.  The Activity notified the
 Union that it would not negotiate further until the petition was
    In December 1985, the Activity notified the Union that it would issue
 a Letter of Instruction to its supervisors in order to implement 5
 C.F.R. Section 610.121(b), a Government-wide regulation promulgated by
 the Office of Personnel Management (OPM) in 1983.  The regulation
 required supervisors to change employees' work schedules as they deemed
 necessary, and to notify the affected employees, prior to the beginning
 of the administrative work week in which the change would occur.  The
 Activity acknowledged that its Letter of Instruction would conflict with
 Article VII, Section 6 of the agreement, but stated that the agreement
 had expired and that the change was necessary in order to comply with
 the Government-wide regulation.
    The Activity gave the Union 10 days within which to comment on the
 proposed change.  The Union responded that it had no obligation to
 negotiate with the Activity because implementation of the new regulation
 was barred by provisions of the existing agreement.  The Activity
 implemented its Letter of Instruction and the Union submitted the
 dispute to arbitration.
                       III.  The Arbitrator's Award
    The Arbitrator framed the issues before him as follows:
          1.  Is there a valid labor agreement between the parties?
          2.  Did the Army properly implement a government wide rule or
       regulation in violation of 5 CFR Section 610.1216?
    The Arbitrator stated that he had to resolve the first issue before
 he could rule on the second issue.  He determined that there was no
 valid agreement between the parties and that the Union did not have a
 right to enforce any of the expired Agreement provisions.  Having
 answered the first question in the negative, the Arbitrator stated that
 he did not have the authority to rule on the second issue.  The
 grievance was therefore denied.
                       IV.  Positions of the Parties
    The Union contends that the award does not draw its essence from the
 parties' agreement or any other applicable principle of labor law, and
 that the Arbitrator grossly misapplied the facts which were presented to
 him.  The Union also contends that, notwithstanding the expiration of
 the collective bargaining agreement, the Arbitrator acted contrary to
 law.  Specifically, the Union asserts that the award is contrary to the
 Authority's decision in National Association of Government Employees,
 Local R7-23 and Department of the Air Force, Scott Air Force Base,
 Illinois, 23 FLRA No. 97 (1986).  In its opposition, the Activity
 asserts that the Union is simply attempting to relitigate the grievance
 before the Authority, and that the exceptions provide no basis for
 finding the award deficient.
                       V.  Analysis and Conclusions
    We find that the exceptions do not provide a basis for finding the
 award deficient under section 7122(a) of the Statute.  The Union's first
 exception, that the award does not draw its essence from the parties'
 agreement, constitutes nothing more than disagreement with the
 Arbitrator's reasoning and conclusions in reaching his award.  As we
 have repeatedly held, such disagreement provides no basis for finding an
 award deficient.  See, for example, U.S. Department of Labor and Local
 12, American Federation of Government Employees, 24 FLRA No. 46 (1986).
    The Union's second exception also does not demonstrate that the award
 is deficient.  The Union's reliance on our decision in Scott Air Force
 Base is misplaced.  In that decision, we found Proposal 1 to be
 inconsistent with the statutory and regulatory provisions governing
 hours of work.  In the case before us, the Arbitrator did not reach the
 second issue before him because he determined that the parties'
 agreement had expired.  The fact that he did not rule on the
 negotiability of the expired provision or comment on the effect of the
 Activity's implementation of the Government-wide regulation which
 concerned that expired provision does not make his award deficient as
 contrary to law or inconsistent with Scott Air Force Base.
                               VI.  Decision
    The Union's exceptions are denied.
    Issued, Washington, D.C., June 18, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY